PFAS: Pruitt Declares EPA will “Take Action” and Sets Four “Critical Steps” in Motion

DLA Piper
Adam Baas, George Gigounas and John E. Griffith, Jr.

May 23, 2018

The US Environmental Protection Agency (EPA) has begun its two-day National Leadership Summit in Washington, DC to address Per- and Polyfluoroalkyl Substances (PFAS) – a class of man-made chemicals that have been used since the 1950s in the production of a wide range of products that resist heat, stains, grease and water, including furniture protectants, floor wax, food packaging and firefighting foam.

The intent of the Summit, according to EPA Director Scott Pruitt, is to “bring together stakeholders from across the country to build on the steps we are already taking and to identify immediate actions to protect public health.”

The Summit attendees include representatives of 30+ states, 20+ agencies, 3 tribes, and dozens of industry and NGO entities.

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Issue Spotlight: Proper Hazardous Waste Storage And Disposal At Healthcare Facilities

Holland & Knight LLP
John S. Irving IV

June 4, 2018

With all of the regulatory obligations that hospitals and other healthcare facilities need to comply with, it might be easy to overlook an environmental law that can lead to significant trouble. Hospitals may find themselves in EPA’s sights over their handling of hazardous waste. Operators of healthcare facilities are encouraged to include this topic in their risk assessments and to consider environmental compliance audits.

The particular environmental law at issue is the Resource Conservation and Recovery Act, or “RCRA” (42 U.S.C. § 6901 et seq.). RCRA requires hazardous waste to be treated, stored and disposed of in compliance with permits and imposes recordkeeping requirements. It provides for civil penalties of up to $71,264 per violation and criminal penalties for “knowing” violations of up to two years in prison and a $250,000 fine for individuals, and up to five years of probation and fines of up to $500,000 for organizations.

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The Superfund Task Force: One Year Later

Dinsmore & Shohl LLP
Elizabeth T. Schindzielorz

May 31, 2018

It was this time last year that U.S. Environmental Protection Agency Administrator Scott Pruitt created a Superfund Task Force to “provide recommendations . . . on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country” under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., also known as the “Superfund.”[1] Approximately two months later, the Task Force produced a report with 42 recommendations which “can be initiated without legislative changes within the next year.”[2] The recommendations are intended to advance five overarching goals: expediting cleanup and remediation, re-invigorating responsible party cleanup and reuse, encouraging private investment, promoting redevelopment and community revitalization, and engaging partners and stakeholders.[3] The Task Force has published two quarterly reports since October 2017 to document its progress implementing these recommendations.[4] This article highlights two of the most recent updates to the body of Superfund guidance pursuant to Task Force recommendations.

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A Structured Guide to Soil, Air and Water Pollution Regulations in the USA

Beveridge & Diamond PC
James M. Auslander, Ryan J. Carra, Andrew C. Silton, Shengzhi Wang and Nicole B. Weinstein

May 1, 2018

Soil Pollution

Liability

What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?

The Comprehensive Environmental Response, Compensation and Liability Act (Superfund) and similar state laws. The Environmental Protection Agency (EPA) lists sites on the National Priority List based on a hazard ranking system. Liability under the act and state laws is typically strict, joint and several, and retroactive, even to legacy contamination sites. States also implement voluntary clean-up and brownfields programmes aimed at remediating and reusing legacy contaminated soil sites.

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Answers to 3 Key Questions About the Remediation of Superfund and Brownfield Sites Under President Trump’s Infrastructure Proposal

Buchanan Ingersoll & Rooney PC
Kimberly Arouh,  Edward G. Hild and Howard J. Wein

May 9, 2018

In addition to addressing the repair of roads and bridges, President Trump’s infrastructure proposal addresses a decidedly less popular infrastructure element — Superfund Sites and Brownfield Sites. It is worth looking at how President Trump’s proposed changes to Brownfield and Superfund revitalization may impact future infrastructure proposals. Additionally, with the House of Representatives passing the Brownfields Enhancement, Economic Redevelopment, and Reauthorization Act of 2017 late last year, President Trump’s infrastructure proposal could impact land revitalization before anything else.

 What are the key questions municipalities and companies should be thinking about as they examine the President’s proposed changes to Brownfield and Superfund reform? Here are the top three.What are the biggest changes to current Brownfield and Superfund cleanup funding proposed by President Trump’s Infrastructure Plan?

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Enforcement Principle 2: “Enhancing Cooperative Federalism”

Bracewell LLP
Kevin D. Collins, Jason B. Hutt, Ryan Eletto and Kevin Voelkel

May 7, 2018

On March 12, 2018, Acting Assistant Attorney General for the DOJ’s Environment and Natural Resource Division (“ENRD”), Jeffrey H. Wood, issued a U.S. Department of Justice (“DOJ”) memorandum titled “Enforcement Principles and Priorities” (the “Wood Memorandum”. The Wood Memorandum identified seven enforcement principles for the ENRD. We discussed portions of the Wood Memorandum in our April 19th and April 30th posts. Today, we will discuss the second principle, “Enhancing Cooperative Federalism.”

Enhancing Cooperative Federalism

The third enumerated principle in the Wood Memorandum discusses the relationship between ENRD and state governments in fulfilling environmental enforcement responsibilities.

Federalism is a system of government in which the federal government, the States, tribes, and local governments retain distinct, specified lawmaking powers.

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Ninth Circuit Finds Tax Sale Purchaser Liable under CERCLA

Manko, Gold, Katcher & Fox LLP
Maria C. Salvemini

May 14, 2018

The Ninth Circuit recently reversed a grant of summary judgment by the United States District Court for the Central District of California in California Department of Toxic Substances Control v. Westside Delivery, LLC, No. 16-56558, 2018 WL 1973715 (9th Cir. Apr. 27, 2018), holding that a defendant who purchased real property at a tax sale had a “contractual relationship” with the previous owner “in connection with” the polluting activities, and therefore was not entitled to a third-party defense under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). In this case, California’s environmental agency, the Department of Toxic Substances Control (DTSC), sought to recover clean up costs from a subsequent owner of the contaminated property and the owner asserted as a defense, recognized under CERCLA, that the contamination was caused by a third party prior to it taking title with whom it had no contractual relationship. The matter before the court was one of first impression in the Ninth Circuit: “Does a defendant who buys real property at a tax sale have a ‘contractual relationship’ with the previous owner of the property within the meaning of CERCLA?” Id. at *1. The court’s affirmative answer will give pause to prospective tax-defaulted property purchasers who may find themselves liable for cleanup costs under CERCLA.

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The Coal Ash Rule Update: EPA Proposes More Flexibility for States and Companies Report Water Data

Steptoe & Johnson LLP
Libretta Stennes and Anthony G. Hopp

March 28, 2018

On March 1, 2018, the US Environmental Protection Agency (EPA) announced the first of two sets of rules that will amend the regulations for the disposal of coal combustion residuals, also known as CCR or coal ash, from electric utilities and independent power producers. EPA proposed more than a dozen changes to the 2015 final CCR rule, and estimated that, if this proposal is finalized, it will save the regulated community between $30-$100 million per year.

EPA Administrator Scott Pruitt issued a statement explaining that the goal of the changes is to demonstrate partnership with states to allow for flexibility to tailor permit programs based on their individual needs. Administrator Pruitt also emphasized the intent to seek “much-needed” public comment. Based on a 2016 Congressional Amendment to the Resource Conservation and Recovery Act and the passage of the Water Infrastructure Improvements for the Nation Act (WIIN Act), the EPA has proposed a series of changes that would potentially allow states more freedom to regulate CCR impoundments with oversight from EPA.

The proposed changes include:

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DEC Undertaking Statewide PFAS Evaluation at Remediation Sites

Phillips Lytle LLP
David P. Flynn and Luke Donigan

April 3, 2018

The New York State Department of Environmental Conservation (“DEC”) is requiring owners of remediation sites across the State (including those already remediated to DEC’s satisfaction) to analyze and report on the presence of 1,4-dioxane and per- and polyfluoroalkyl substances (collectively “PFAS”) in groundwater. This has been triggered by concerns about these “emerging contaminants” at Hoosick Falls and other sites across the State. DEC has begun to send letters to many remediation site owners notifying them of the new statewide evaluation requirements and asking site owners to schedule sampling dates.

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Synergy Environmental to Host Mid-Atlantic Training

June 4th to 8th, 2018

Synergy Environmental, Inc.
Brian Loughnane

April 19, 2018

Waterloo Hydrogeologic will hold its Mid-Atlantic training for Visual MODLFOW Flex at Synergy’s Royersford, PA Headquarters for the second straight year.

As known by many in the water resources industry, Waterloo Hydrogeologic is a Ontario, Canada based company that specializes in groundwater modeling software, training, and consulting services.  The selection of Synergy Environmental as a training center highlight’s Synergy’s expertise in groundwater contaminant fate and transport modeling expertise.

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